Custodial Parent in Jail

[FL Step Mom]

The custodial parent, the mother, went to jail over the weekend while the children were with us.  The children were supposed to go back to their mother on Sunday evening, but of course they could not.  We now have the mothers mother calling and asking to take the kids until their mother gets out of jail.  

They are currently in school, and she is on the pick up list for the school.  Is there anything we, as non custodial parents do to stop her from picking up the children from school?  Checking them out even.  This is a very vengful family, and we are sure even, that the mother turned her daughter in.

We have no problem with the mother being in jail.  The children are fine and only slightly worried.  But this is a family of sharks we are playing with.

We are not yet filing for temporary custody or anything since it is likely she will get out of jail within a few days.  Should we go ahead and file even though she could get out today?

I know this is kind of jumbled, but it is really upsetting.  Any help or advise would be appreciated.

[CustodyIQ]

Hi,

I don't think you have much of a case to modify custody based solely on being in jail for a few days.

I'd suggest that you follow the court-ordered schedule.  If she fails to pick up the kids (or arranges to have a care-giver pick them up), then you go do it.  I'm sure the school will contact you, right?

If she were in jail for a few months or more, I think you'd have a good argument that it's best for the kids to stay primarily in your home, given that the mother is absent.

Now, the cause of being in jail is a potential area for custody modification.  If she's in jail for possession of a serious drug (crack, cocaine, heroin), then you can reasonably argue that she may have addiction stuff going on that isn't good for being a parent.

But if she's in jail on something completely unrelated to parenting (e.g., a warrant for not appearing at a hearing for a speeding ticket), then that's largely irrelevant to child custody.

[FL Step Mom]

Yes, we knew there probably wouldnt be a chance just because she was in jail.  What we are concerned about is that her mother will take them from the school.  Because we are non custodial, the school says we cannot modify the pick up list.  I cannot even be added to it.  

If their grandmother goes and checks them out of school, how can we prove that the mother wants them to be with us?  

Thanks.

[CustodyIQ]

You didn't mention in your initial post that the mother wants the kids to remain in your care.

If that's the case, then pick up the kids, acting under direction of the mother.

If you can get the mother or the mother's attorney to sign something to that effect, even better.

[FLMom]

I think it would be wise for your husband to pull out a copy of his divorce decree or legal custody agreement and take a look at it.

If you live in Florida, you can be a "non custodial parent" and still have joint legal custody.

That's how it is in my situation. My ex has primary custody and we have joint legal. That means joint decision making in matters of school and medical.

IF you have joint legal, tell your husband to march right up to that school with a copy of his legal papers. It is illegal for the school to  consider him anything less than equal to the parent with primary custody IF you also have joint legal.

Case in point: My ex enrolled our kids in a new school, conveniently leaving me off of the paperwork as their mother. When I called the school to ask about their teachers and classes, I was treated like I was dripping with germs. I was told that I was not allowed any information about our children unless I could prove I had some kind of custody.

The next day I went into the school and requested copies of all of the forms that my ex had filled out, along with the names of their teachers and their schedules. They called the principal over to the desk. She took one look at the divorce decree papers and said, "Give their mother whatever forms and information she wants".

Also, if it's true that you do have joint legal, you can request that the grandmother's name be removed from the list of people allowed to take them out of school. You're legally allowed to pick them up. Because she isn't a custodian or guardian and you're joint legal with the mother, you have that right. The school has no choice but to comply.  


Here is a portion of the FL Statutes dealing with this:

Definitions:

"Custodial parent" or "primary residential parent" means the parent with whom the child maintains his or her primary residence.

"Noncustodial parent" means the parent with whom the child does not maintain his or her primary residence.

"Shared parental responsibility" means a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly.

(SEE!--- Don't let that phrase "non custodial" make you feel like you have no rights, because you DO unless a judge has taken them away! Read on. . . . .)

61.13  Custody and support of children; visitation rights; power of court in making orders

b. 3.  Access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records, may not be denied to a parent because the parent is not the child's primary residential parent. Full rights under this subparagraph apply to either parent unless a court order specifically revokes these rights, including any restrictions on these rights as provided in a domestic violence injunction. A parent having rights under this subparagraph has the same rights upon request as to form, substance, and manner of access as are available to the other parent of a child, including, without limitation, the right to in-person communication with medical, dental, and education providers.

Good Luck,
FLMom